Plaintiff Mark Janus passes in front of the U.S. Supreme Court after a hearing Feb. 26 in Washington, D.C. The court heard the case, Janus v. AFSCME, to determine whether states violate their employees' First Amendment rights by requiring them to join public-sector unions. (Alex Wong/Getty Images)

The U.S. Conference of Catholics Bishops files a brief endorsing public-sector unions in a right-to-work case before the U.S. Supreme Court, prompting pushback from the plaintiff and others.

Joan Frawley Desmond

WASHINGTON — When Mark Janus, an Illinois state worker and the plaintiff in a pivotal right-to-work case before the U.S. Supreme Court, learned that the U.S. Conference of Catholic Bishops (USCCB) had dismissed opponents of public-sector union dues as “free riders,” he was indignant.

“Who’s the real free rider here?” Janus asked in published comments that referenced the USCCB’s amicus brief filed in his case, Janus v. the American Federation of State, County and Municipal Employees.

The union is “taking my money,” said Janus, who added he spoke for “thousands” of government workers who had not joined the union and did not agree with its policies but still had their wages garnished to cover the cost of negotiating labor contracts.

Janus is not the only one to raise objections to the USCCB amicus brief that sides with public-sector unions in his high-profile, politically sensitive case. Bishop Thomas Paprocki of Springfield, Illinois, has publicly criticized the brief and said the U.S. bishops’ views had not been solicited.

“There is the presumption of a consensus on this issue, when it is not clear to me that we have that consensus,” Bishop Paprocki told the Register in an interview following this week’s oral arguments for the Janus case.

“While the Church … supports freedom of association for workers, it is not part of Church teaching that someone who is not a member of a union must still pay dues,” Bishop Paprocki said.

He raised an additional question about the bishops’ conference finding common cause with a powerful labor organization that backs abortion rights.

“I don’t know specifically what Janus’ objections are regarding the union’s political work, but the public-sector union supports abortion and donates to Planned Parenthood,” he said, noting that agenda would be a clear problem for faithful Catholics.

Oral Arguments Heard

On Monday, the high court addressed Janus’ legal challenge to laws that permit public-sector unions to receive payments from nonmembers in the form of so-called “agency fees.” At present, 23 states permit the practice, which Janus says is a violation of his rights, under the First Amendment, to voluntary association and free speech.

In his view, public-sector unions engage in inherently political activity, negotiating with governments to secure wages paid for by taxpayers. The Constitution requires the government to protect First Amendment rights, but mandatory union fees force every worker to underwrite inherently political activity, Janus contends, whether they agree with it or not.

An estimated 30% or more of public-sector employees share Janus’ views. If he wins his case, the expected decline in revenue to organized labor would sharply reduce its political and financial clout, dealing a body blow to the Democratic Party coalition, which often relies on these funds to help fill campaign coffers and secure its agendas.

Given the high stakes, legal analysts had predicted that Monday’s oral arguments would set off fireworks on the ideologically divided court, and they were not disappointed.

“What we are talking about here,” said Justice Anthony Kennedy, in an attack on mandatory union dues during the oral arguments, “is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly.”

In a subsequent exchange, Kennedy asked David Frederick, the lawyer representing the union local, whether a legal defeat would result in “less political influence” for his client. “Yes,” answered Frederick.

That response, in Kennedy’s view, confirmed the truth of Janus’ claim, and the justice replied, “Isn’t that the end of this case?”

But the court’s liberal wing also scored points.

Justice Elena Kagan warned that if the unions lost the case, the contracts of about 10 million government workers would be invalidated, and Justice Ruth Bader Ginsburg worried that many other government workers would stop paying their dues to save money and thus hamstring the unions’ work.

Amicus Brief Controversy

Now, as court watchers await the justices’ ruling, a controversy over the U.S. bishops’ amicus brief is brewing on the sidelines.

The U.S. bishops were not consulted before the brief was filed, said Bishop Paprocki, and several bishops had contacted him to express support after he issued a statement challenging the brief.

Bishop Paprocki made clear that he was not dismissing the Church’s history of support for the right of workers to join labor unions.

In the 20th century, the most powerful example of this legacy is surely Pope St. John Paul II's support for the Solidarity labor movement in Poland that helped forge the nonviolent overthrow of communism. In his 1981 encyclical Laborem Exercens, written for the 90th anniversary of Pope Leo XIII’s groundbreaking encyclical on workers’ rights, Rerum Novarum, John Paul wrote:

“All these rights, together with the need for the workers themselves to secure them, give rise to yet another right: the right of association, that is to form associations for the purpose of defending the vital interests of those employed in the various professions. These associations are called labor or trade unions” (20).

The dispute first erupted after the bishops’ conference’s amicus brief, backing the American Federation of State, County and Municipal Employees (AFSCME), drew media attention.

“Catholic Bishops Side With AFSCME in Supreme Court,” read one headline for an article that cited the brief, highlighting the brief’s claim that the protection of labor rights was as important to the Church as the defense of unborn human life and traditional marriage.

“The Catholic bishops of the United States have long and consistently supported the right of workers to organize for purposes of collective bargaining,” read the USCCB amicus brief, filed Jan. 19 and written by Anthony Picarello Jr., the general counsel for the U.S. Conference of Catholic Bishops. “Because this right is substantially weakened by so-called ‘right-to-work’ laws, many bishops — in their dioceses, through their state conferences, and through their national conference — have opposed or cast doubt on such laws, and no U.S. bishop has expressed support for them.”

The court “should leave constitutional space for the public-policy position supported for so long by so many bishops,” stated the brief, which claimed that a defeat for the union would effectively “marginalize” the Church’s voice on labor issues.

Ed Whelan, an influential legal analyst who blogs at National Review’s “Bench Memos,” was the first to criticize the various arguments in the USCCB brief. In a Feb. 9 post, Whelan took particular exception to the notion that public-sector unions were especially worthy of the Church’s support. AFSCME donated $400,000 to the Planned Parenthood Action Fund in 2014, Whelan confirmed. And he expressed frustration with the brief’s effort to equate the defense of public-sector unions with the Church’s established moral doctrine on life and marriage.

“[T]hose not well versed in Catholic teaching will imagine that the American bishops … are now putting all three matters on the same moral plane. Why would the USCCB sow such confusion?” asked Whelan.

Differing Episcopal Views

But Bishop David Zubik of Pittsburgh defended the brief’s support for public-sector unions in a Feb. 19 column for his diocesan paper, The Pittsburgh Catholic, underscoring the Church’s steady support for the right of workers to organize in order to protect their interests and secure critical benefits for their families. And if U.S. labor organizations adopt “wrongheaded” positions on some issues, he said, such matters should be addressed on a case-by-case basis.

Further, he contended that Janus had accepted his government job knowing that it came with union dues. If the plaintiff disagreed with union policies, he should have taken a different job.

However, Bishop Paprocki strongly challenged this assertion in his interview with the Register.

“The reasoning that Janus should not have taken the job if he didn’t agree with the union’s position would make sense if he had wanted to work for a private company — and one company was a union shop and another wasn’t,” he said. “But there is only one public sector and one government. The choice is not between joining a union or not, but am I going to serve in the government or not?”

The amicus brief, he concluded, had framed the U.S. bishops’ silence on right-to-work laws as a moral judgment against them, an interpretation he disputed.

“Reasonable people can disagree as to whether the rights of association and free speech are helped or hindered by mandatory union dues,” Bishop Paprocki said.

Other Perspectives

Several analysts contacted by the Register agreed with Bishop Paprocki’s critique of the USCCB brief, in comments that suggested the U.S. bishops should update their stance on labor rights and consider whether the Church’s long-standing support for labor associations actually applies to American-style public-sector unions.

“If the bishops are saying that a decision against the union in this case would be as unjust, or as detrimental to the common good, as are the court’s decisions in Roe and Obergefell, then the bishops are grossly mistaken,” said Gerard Bradley, a specialist on the U.S. Constitution at the University of Notre Dame Law School who has also studied Rerum Novarum.

“A decision against the union would mean that the bishops backed the losing side,” Bradley said. “That does not necessarily ‘marginalize’ anyone.”

Bradley Lewis, a political philosopher who specializes in Catholic social teaching at The Catholic University of America, observed that the brief “cites many passages in classic [social] encyclicals” to bolster its argument favoring AFSCME, “but none of them refer to public-sector unions nor do they concern mandatory agency fees.”

Pope Leo XIII, for example, did endorse the “right of workers to organize,” said Lewis, but it is not clear whether he “would have approved of any labor union that was not explicitly Catholic.”

In his view, Bishop Paprocki was right to “distance himself” from the brief’s support for public-sector unions in the Janus case. “It is a political question that is properly left to the prudence of public officials and the legal system.”

Offering another view of the case’s significance, Eric Baxter, senior counsel for Becket, told the Register that his public interest group filed an amicus brief supporting Janus. Becket is a leading public interest group that specializes in religious-freedom cases.

Neither Picarello nor a representative from the U.S. bishops’ conference responded to the Register’s request for comment.

Teaching Moment?

Will these arguments prompt the Church to take a fresh look at the broader issues raised in this case and possibly find a way to distinguish between public- and private-sector unions in Catholic social teaching?

Bishop Paprocki suggested that a future papal document on labor issues would likely not address these issues, but the U.S. bishops, possibly on an individual basis, could do so.

“It would be hard for the Holy See to do that, given that governmental structures are different around the world,” and the “universal Church speaks in more general terms,” he said.

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